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2009 DIGILAW 636 (HP)

Mahamai Traders, General Merchants v. Shankar Chopra

2009-07-08

CHANDER SHEKHAR SHARMA, M.M.ARUN KUMAR GOEL, SAROJ SHARMA

body2009
ORDER Mr. Chander Shekher Sharma, Member - This appeal is directed against the order of District Forum Kangra, at Dharamshala, Camp at Kangra, in Consumer Complaint No. 114/2005 dated 8.6.2007 whereby the District Forum below has allowed the complaint of the respondent No.1 by directing the appellant who is the wholesale dealer and respondent No.2 who is the manufacturer of Lay Chips to refund the price of 5 packets of Lay Chips to the respondent No.1 within 30 days from the receipt of copy of the order and they were jointly and severally held liable to pay compensation to the respondent No.1 to the tune of Rs. 10,000/- 2. Facts of the case are within very narrow compass. Respondent No.1 who is running two shops having STD connections at Kangra had purchased 48 packets of chips for an amount of Rs. 214/- on the occasion of birthday party of his son on 24.2.2005. During the party when the lay chips packets were to be distributed to the children, then it had come to his notice that the 4 packets of chips 506 2010(1) Cur.L.J.(H.P.) were totally empty and were having only air and some were only having small quantity of chips then the prescribed one. As such it was' a case of deficiency of service/unfair trade practice adopted by the appellant. Hence, complaint under Section 12 of the Consumer Protection Act, 1986 was filed wherein direction has been sought for refunding an amount of Rs. 214/- and also, awarding of compensation to the tune of Rs. 30,000/- for mental torture and harassment and Rs. 20,000/- towards cost of litigation. Hence the present appeal. 3. Appellant has contested the complaint and submitted the defence version wherein it has been pleaded that respondent No.1 is not a consumer under the Consumer Protection Act, 1986 since chips were purchased for the commercial purpose as he runs 2 Nos. of shops. It has also been alleged in the reply that no complaint was made by the respondent No] regarding the defects in the lay chips packets, as such present complaint is false and frivolous story concocted by the respondent No.1 in order to harass the appellant and it has also been pleaded that there is no deficiency of service on the part of the appellant. The respondent No.2 who is the manufacturer of lay chips despite service had not filed the reply of the case and the right of respondent No.2 to file version was closed by the order of the District Forum below on 16.7.2005. 4. Appellant/ respondent have filed affidavits/various documents before the District Forum below which have' been discussed by the District Forum below in its order and are not being referred for the sake of brevity. 5. In the present case during the proceedings before the District Forum below, application for permission/ breaking open of lay chips packets which were empty or having deficient quantity of chips was given by the District Forum below as per order dated 6.1.2007. 6. We have heard Ms. Poonam Sandhu learned counsel for the appellant and Mr. Shashi Shushan Singh Chandel learned counsel .for the respondent No.1 and has also minutely gone through the case file. 7. Ms. Sandhu learned counsel for the appellant has argued, that the present complaint is not legally maintainable since it is a commercial transaction and respondent No.1 does not fall within the definition of consumer under Consumer Protection Act, 1986 and it was also argued that the respondent No.1 has never brought the defect in the lay chips packet to the notice of the appellant and has filed the present complaint directly as such this is a false and concocted complaint against the appellant. Per Ms. Sandhu there is no deficiency/unfair trade practice on the part of the appellant. Mr. Chandel learned counsel for respondent No.1 has supported the order of District Forum below. 8. After hearing the arguments of both the parties, as well as after going through the record of the case, we are convinced that the order of District Forum below does not suffer from any infirmity and it calls for no interference and there is no force in the arguments of learned counsel for the appellant. Reason being that the respondent No.1 has purchased 48 packets of lay chips for a consideration of Rs 214/ - from the appellant on the occasion of birthday party of his children on 24.2.2005 vide cash memo Annexure C- 1. Reason being that the respondent No.1 has purchased 48 packets of lay chips for a consideration of Rs 214/ - from the appellant on the occasion of birthday party of his children on 24.2.2005 vide cash memo Annexure C- 1. Since the purchase was made for the purpose of birthday party of the son of respondent No.1 and as such it does not lie in the mouth of the appellant to plead that respondent is not a consumer under the Act. Hence we are of the view that respondent No.1 is a consumer as per Section 2(1)(d) of the Consumer Protection Act, 1986. 9. There is sufficient evidence placed on record that respondent has arranged party on the occasion of the birthday of his son and 48 packets of lay chips were purchased for the said function and when they were to be distributed in the said party, then it was revealed that out of 24 packets 4 packets were totally empty and were only having air and remaining packets were of lesser quantity prescribed then the one. Even the District Forum below has made observation in its order dated 6.1.2007 regarding 4 empty packets of lay chips and lesser quantity of chips in the 5th packet. The relevant portion of the order of District Forum below, dated 6.1.2007 is reproduced hereinbelow:- "This application is maintained by the applicant/ complainant for opening the sealed parcel. Today if the sealed parcel is handed over to the Forum by the Reader. The same was inspected by the Forum and the seals were found intact. The parcel was ordered to be opened in presence of both the learned vice counsel for the parties. After opening the same it was found that the same containing box containing five packets of Las manufactured by Pepsi Foods Private Ltd. village Chanoo Patiala for Pepsi Foods. The learned vice counsel for the parties duly checked the Jive packets and they admitted that out of five packets. four packets ere empty and fifth packet contains certain chips. E have also observed after shaking the packets that four packets were empty and one packet contains certain chips and the price of each packet has been shown as Rs. 5/ -. In view of this, the application is disposed of on the principles of natural justice. four packets ere empty and fifth packet contains certain chips. E have also observed after shaking the packets that four packets were empty and one packet contains certain chips and the price of each packet has been shown as Rs. 5/ -. In view of this, the application is disposed of on the principles of natural justice. The parcel is ordered to be released and the same sealed in the office of SDM with seal impression Election Commission' and the office is directed to keep the case - property in safe custody. " (Emphasis supplied) 10. Hence, there is cogent, convincing and reliable evidence on record to prove that there is deficiency of service/unfair trade practice on the part of the appellant. This fact cannot be lost sight that many persons in the country are purchasing said chips for various purpose every month and as such appellant/respondent No.2 must be earning substantially and as such taking in to consideration the facts and circumstances of this case, we are of the considered view that award of compensation to the tune of Rs. 10,000/- which was an exemplary one was quite justifiable and there is no infirmity in the order of District Forum below which is well reasoned. 11. No other point was urged. Hence, keeping in view the facts and circumstances of the case and evidence which has come on record, we are of the considered view that there is no reason to interfere with the order passed by District Forum Kangra, at Dharamshala, Camp at Kangra, in Consumer Complaint No. 114/2005 dated 8.6.2007, as such the same is upheld. Consequently this appeal is dismissed, leaving the parties to bear their own costs. All interim orders passed from time to time in this appeal shall stand vacated forthwith. Learned counsel for the parties have undertaken to collect copy of this order from the Court Secretary free of cost as per Rules. M.R.B.